Discovery Tactics in Commercial Litigation

It’s a little-known fact that many cases are won or lost in the discovery process. It’s even less known what discovery actually is. If your company has recently been involved in a lawsuit, you may be getting a lot of urgent phone calls from your legal counsel asking a lot of questions and requesting a lot of documents. This is likely because they are receiving “discovery requests” from opposing counsel. This will be the most time and money-consuming process that you will go through.

Discovery Basics

Discovery in the context of litigation is the process by which both sides obtain testimony and evidence to support their positions. For the most part, this all takes place outside the courtroom. However, if one or both parties feel that the process is being abused, they may take the discovery issue to court to have a judge decide how the parties will proceed.

Parties may seek oral or written discovery, and they may ask for documents to be produced or for inspection of objects that are connected to the lawsuit. Discovery can also be used to gain information from parties outside the lawsuit. Types of discovery mechanisms include:

Depositions

Interrogatories

Requests for Productions of Documents and Things and upon Land for Inspection and Other Purposes

Requests for Admissions

Physical and Mental Exam of Persons

What Can Be Discovered?

There are many rules to the discovery process about what can and cannot be “discovered.” In any given lawsuit, an attorney may ask about:

things any witness or party saw, heard, or did in connection with the lawsuit;

things someone said at a particular time and place may be relevant to the facts of the lawsuit;

additional parties that might know something about the dispute or about any injuries or losses either party experienced;

details about business processes and procedures;

documents pertaining to the lawsuit;

personal, educational, and professional information about a witness.

Limitations on What Can Be Sought in Discovery

Counsel may request anything that is relevant to the lawsuit, whether it is more or less likely to prove a fact that affects the outcome of the dispute. There are limits though, of what can be requested and what the other party may withhold from production. Categories of items that can be withheld include confidential conversations that may be between:

spouses

lawyer and client

doctor and patient, and

religious advisor and advisee

Other items that are subject to privilege include attorney work-product and private topics that a person would not generally talk about with anyone outside of immediate family and intimate friends, including:

health or body issues

sexual issues

spiritual or religious beliefs

family relationship issues

In certain instances, a court may order a sensitive topic be addressed, but may issue a protective order keeping the information out of the public record to protect the privacy of the parties. This may also be done in instances where sensitive business information or trade secrets must be protected.

If you are enduring the discovery process right now, it can be very overwhelming, but your attorney should be able to guide you through the process and ensure that you understand what is going on every step of the way.